ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  25 July 2019

	DOCKET NUMBER:  AR20160015296


APPLICANT REQUESTS:  In effect, medical discharge rating of 50% which should have given him a medical retirement.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* Military Personnel Records Jacket (MPRJ)
* Department of Veteran Affairs (VA) rating decision

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file.

2.  The applicant states per his Medical Evaluation Board (MEB) finding he was discharged at 10 percent (%) disability.  He filed for VA benefits within a few weeks of being discharged and VA gave him 50%.  So he now questions the 10% evaluation received from the US Army.  He is concerned that the US Army had under rated his disabilities as to defraud him out of any continued benefits from the Army.  Medical discharge rating of 50% which should have given him a medical retirement as well.

3.  The applicant provides:

* His entire MPRJ
* VA rating decision that shows he had a combined evaluation for compensation of 50% from 14 June 2003 for Degenerative disc disease of the lumbosacral spine 40%, radiculopathy with neuropath, left and right lower extremity 10% each side

4.  A review of the applicant’s service records shows the following:

	a.  He enlisted in the Regular Army on 22 February 2001.
	b.  DA Form 3349 (Physical Profile) shows he was issued a permanent profile for herniated lumbar disc which was approved on 18 February 2003.

	c.  MEB narrative summary states the applicant was examined on 24 February 2003 for a chief complaint of low back pain.  The diagnosis was herniated disc disease, lumbar spine and the conclusion was the applicant did not meet retention standards under Army Regulation (AR) 40-501 (Medical Services-Standards of Medical Fitness), paragraph 3-39e Herniation of nucleus pulposus.

	d.  On 17 April 2003, DA Form 3947 (MEB Proceedings) shows he was referred to a Physical Evaluation Board (PEB) on 22 April 2003.  He was issued another permanent profile for herniated lumbar disc with degenerative arthritis of back, which was approved on 25 April 2003.  The applicant did not agree with the Board’s findings and recommendation.  He asked if the impressions of spondylosis from the neurosurgeon and lumbar radiculopathy from the neurologist need to be included in the diagnosis.  His appeal was considered and the original findings and recommendations were confirmed on 30 April 2003.

	e.  DA Form 199 (PEB proceedings) determined the applicant had a disabling condition of herniated disc disease L5-S1.  A 10% disability rating was recommended and determined his disposition should be separation with severance pay if otherwise qualified.  He concurred and waived a formal hearing of his case on 14 May 2003.

	f.  DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably discharged under provisions of AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) paragraph 4-24b(3) separation for physical disability with severance pay.  He completed 2 years, 3 months, and 22 days of active service.

5.  On 31 May 2018, Case Management Division (CMD) requested a medical review of the applicant’s medical condition(s) to ascertain if alleged medical condition(s) warranted separation through medical channels.  On 6 June 2019, the ARBA medical advisor rendered an advisory opinion in the applicant’s case.  The advisor opined:

	a.  There is insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions and so no additional disability rating(s) recommended in the discharge type or narrative reason for the contended condition.

	b.  The Army has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation.  Congress grants that role and authority to the VA, operating under a different set of laws.

	c.  If the official service treatment records become available in the near future, from the VA or elsewhere, the advisor will review and amend this medical advisory if indicated.

6.  On 12 June 2019, the applicant was provided the advisory opinion to give him an opportunity to submit a rebuttal; however, he did not respond.

7.  By regulation, AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, and separation including retirement.

8.  By regulation, AR 635-40, the mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  The Soldier will not be declared physically unfit for military service because of disabilities known to exist at the time of the Soldier's acceptance for military service that have remained essentially the same in degree since acceptance, and have not interfered with the Soldier’s performance of effective military service.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that relief was not warranted.  Based upon the findings within the medical advisory and the applicant failing to provide a rebuttal to those findings, the Board concluded that there was insufficient evidence of an error or injustice to make a change to the disability rating of the applicant.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

X	X	X	DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
	 
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.


REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.
2.  Army Regulation (AR) 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the Physical Evaluation Board (PEB) rates all disabilities using the Veteran's Administration Schedule for Rating Disabilities (VASRD).  Department of Defense Instruction (DODI) 1332.39, and AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), appendix B (Army Application of the Veterans Administration Schedule for Rating Disabilities), modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.  Paragraph 3-39e states herniation of nucleus pulposus.  More than mild symptoms following appropriate treatment or remedial measures, with sufficient objective findings to demonstrate interference with the satisfactory performance of duty.

3.  AR 635-40, in effect at the time, set forth the policies for the disposition of Soldiers found unfit because of physical disability to reasonably perform the duties of his/her office, grade, rank, or rating.  

	a.  Paragraph 3-1 states that the mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  The Soldier will not be declared physically unfit for military service because of disabilities known to exist at the time of the Soldier's acceptance for military service that have remained essentially the same in degree since acceptance, and have not interfered with the Soldier’s performance of effective military service.

	b.  Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

	c.  Paragraph 4-17 states PEB's are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact-finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendations to establish eligibility of a Soldier to be separated or retired because of physical disability.

	d.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  The VA can evaluate a veteran throughout their lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

	e.  Appendix B, paragraph of that regulations states conditions which do not render a Soldier unfit for military service will not be considered in determining the compensable disability rating unless they contribute to the finding of unfitness.

4.  On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole, or in part, to:  mental health conditions, including PTSD; traumatic brain injury; sexual assault; sexual harassment.  Boards were directed to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences.  The guidance further describes evidence sources and criteria, and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for that misconduct which led to the discharge.

ABCMR Record of Proceedings (cont)	 AR20160015296


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